Dead Men Telling Tales - a Policy-Based Proposal for Survivability of Qui Tam Actions Under the Civil False Claims Act
Posted: 13 Sep 2004
The civil False Claims Act is the most powerful tool in the federal government's arsenal of weapons used to combat fraud, waste and abuse in government contracting. Because of the long statute of limitations of the civil False Claims Act, and the fact that a qui tam or whistleblower case brought under the civil False Claims Act can remain under seal while the federal government investigates it for many years, the whistleblower may die before the case is settled or litigated. Under the traditional common-law test for survivability of a federal statutory cause of action after a party's death, a court must first decide whether the statute is punitive or remedial. Generally, punitive actions are extinguished upon the death of a party, while remedial actions survive. This paradigm does not work well for qui tam cases brought under the Act, because the Act is both punitive and remedial. This article proposes adoption of a simpler test. The article proposes that the survivability of a cause of action brought by a whistleblower under the Act should depend solely on whether survivability would further the intent of Congress. The article suggests that survivability does further Congress' intent, and that there are sufficient safeguards in our justice system to ensure that defendants are not unduly prejudiced by the death of the whistleblower.
Keywords: False Claims Act, whistleblower, government contracts, survivability, punitive, remedial, qui tam
JEL Classification: H51, I18
Suggested Citation: Suggested Citation